Renfro Drug Co. v. Lawson

• Decision Date: 11 March 1942
• Docket Number: No. 1890-7824.,1890-7824.
• Citation: 160 S.W.2d 246
• Parties: RENFRO DRUG CO. v. LAWSON.
• Court: Texas Supreme Court

Page 246

160 S.W.2d 246

RENFRO DRUG CO. v.LAWSON.

No. 1890-7824.

Commission of Appeals of Texas, Section B.

March 11, 1942.

Certified Question from the Court of Civil Appeals for the Eleventh Supreme Judicial District.

Suit by A. R. Lawson against Renfro Drug Company for damages on account of alleged publication and circulation of magazines containing an article defaming plaintiff's deceased daughter. From an order overruling defendant's plea of privilege, the defendant appeals to the Court of Civil Appeals, which certified questions to the Supreme Court.

Questions answered.

Lyndsay D. Hawkins, of Breckenridge, and Cofer & Cofer, of Austin, for appellant Drug Co.

Floyd Jones, of Breckenridge, J. A. Kibler and Claude Miller, both of Waco, and Emanuel Gassman, of San Antonio, for appellee Lawson.

McKay & Avery and Thomas B. Greenwood, all of Austin, and Harry I. Freedman and Franklin E. Spafford, both of Dallas, amici curiae.

SMEDLEY, Commissioner.

The first of two questions certified by the Court of Civil Appeals for the Eleventh Judicial District is: "Did the act of the Legislature of 1901, in defining civil libel so as to include the words `tending to blacken the memory of the dead', thereby create by implication a cause of action in favor of a father, not injured in his own reputation, to recover damages for a defamation of his deceased daughter?"

The manner in which the question arises and the relevant facts, disclosed by the certificate, the opinion of the Court of Civil Appeals and the transcript, are as follows: AppelleeA. R. Lawson, a resident of Stephens County, filed suit in the district court of that county against appellantRenfro Drug Company, a corporation domiciled in Travis County, for damages on account of the alleged publication and circulation, through appellant's sale at its drugstore in Austin of a copy of a magazine containing an article defaming appellee's deceased daughter.Appellant filed a plea of privilege to be sued in Travis County, and appellee by his controverting plea sought to maintain venue in Stephens County under that part of subdivision 29 of Article 1995 which permits a suit for libel or slander to be brought in the county in which the plaintiff resides "at the time of the accrual of the cause of action".After hearing the evidence offered by appellee in support of the controverting plea, the trial court overruled appellant's plea of privilege.The Court of Civil Appeals reversed the trial court's order and transferred the cause to Travis County, holding that appellee failed to prove that he had a cause of action, because the act of 1901(Article 5430, Revised Civil Statutes of 1925) did not create a cause of action in favor of a father, not injured in his own reputation, to recover damages for defamation of his deceased daughter, and because further there was no proof that appellant circulated the magazine containing the defamatory article, the only evidence of circulation being the sale and delivery of a copy of the magazine solicited and induced by the plaintiff through his attorney.Tex.Civ. App., 144 S.W.2d 417.The questions were certified by the Court of Civil Appeals pending motion for rehearing.

The statement contained in the magazine, as alleged in appellee's petition, was a defamation "tending to blacken the memory of the dead" and was of such nature that it would have been as to the daughter, had she been living, libelous per se, but it did not reflect upon the good name, reputation or character of appellee, the father.While the petition contains allegations in general terms that by the publication and circulation of the statement appellee's good name, reputation and character were injured, the injuries particularly alleged and for which recovery of damages is sought are anxiety, mental anguish, distress of mind and consequent impairment of health.On the hearing no proof was made of injury to appellee's reputation or character.Appellee states in his brief that his suit "is not for injury to his reputation, but is based on the defamation defined as `tending to blacken the memory of the dead' and for mental distress and injury to his health, which were necessarily and proximately caused by the circulation of the defamation in question".

The effect of the filing of the plea of privilege and the controverting plea was to impose on appellee, plaintiff in the trial court, the burden of proving on the hearing of the plea of privilege that a cause of action for libel in fact accrued in his favor.A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619.If he failed to prove that he had a cause of action, the plea of privilege should have been sustained.Victoria Bank & Trust Co. v. Monteith, 138 Tex.___, 158 S.W.2d 63.

Prior to 1901 there was in Texas no statutory definition of civil libel, and actions for recovery of damages for libel were governed by the common law.The twenty-seventh legislature in 1901 enacted a chapter on civil libel, the first section of which defined "libel" as follows: "A libel is a defamation expressed in printing or writing, or by signs and pictures, or drawings, tending to blacken the memory of the dead, or tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity or virtue or reputation of any one, or to publish the natural defects of any one, and thereby expose such person to public hatred, ridicule or financial injury."Laws 1901, p. 30.

This definition was brought forward in the subsequent revisions of the civil statutes.Article 5595, Revised Statutes of 1911, Article 5430, Revised Statutes of 1925.The other sections of the Act of 1901, which relate to evidence that may be given in defense of libel suits, to privileged publications and the preservation of existing defenses, are not relevant to the questions presented for decision.Those sections as amended are Articles 5431 to 5433 of the Revised Civil Statutes of 1925, Vernon'sAnn.Civ.St., Arts. 5431-5433.

Section 1 of the Act of 1901(Article 5430, R.S. 1925) does not purport to create a cause of action where none theretofore existed.It merely sets out a definition of libel.And if a new cause of action exists by reason of the statute, it must arise by implication from the definition.In construing the statute, for the purpose of determining whether it intends to create a cause of action in favor of a father to recover damages for mental anguish suffered by him on account of defamation of his deceased daughter, it is necessary to consider certain of the general rules announced by the authorities applicable to actions for libel at common law or in the absence of statute.

First, as to the definition itself, we are convinced that it is substantially a restatement of the common law definition of "libel".Kent's definition is: "A libel, as applicable to individuals, has been well defined to be a malicious publication, expressed either in printing or writing, or by signs or pictures, tending either to injure the memory of one dead, or the reputation of one alive, and expose him to public hatred, contempt and ridicule".Kent's Commentaries, 13th Ed., Vol. 2, pp. 22-23.His definition is that contained in the opinion of Chief Justice Parsons in Commonwealth v. Clap, 4 Mass. 163, 3 Am.Dec. 212, which has been approved in later decisions and referred to as "the most clear and precise definition of a libel".Clark v. Binney, 2 Pick., Mass., 113;Lyman v. New England Newspaper Publishing Co., 286 Mass. 258, 190 N.E. 542, 92 A.L.R. 1124.It is interesting to observe that Chief Justice Parsons was defining libel in a criminal case, but his definition has been many times approved and used in later decisions as applicable to civil libel.Kent treats the definition as appropriate alike to civil and to criminal libel.

The Connecticut court, in an early civil suit for libel (Hillhouse v. Dunning, 6 Conn. 391), defined "libel" in language substantially the same as that of the definition above quoted from Kent, and containing the phrase "tending to blacken the memory of the dead".Later the same court, speaking through the same justice, used the same definition of libel in a case of criminal libel.State v. Avery, 7 Conn. 266, 18 Am.Dec. 105.

American Jurisprudence gives Kent's definition as one "which has received general acceptance and approbation".Vol. 33, p. 38, Sec. 3.The text applies the definition both to civil and to criminal libel.For other similar definitions, see: 36 C.J.p. 1143, Sec. 3;18 Am.Encyc. of Law, 2d Ed., 861;Newell's, The Law of Slander and Libel, 4th Ed., pp. 1, 2, Sec. 2;State v. Haffer, 94 Wash. 136, 162 P. 45, L.R.A. 1917C, p. 610, and note pp. 615-617, Ann. Cas.1917E, 229;White v. Bourquin, 204 Ill.App. 83.

All of the authorities bearing directly upon the first question certified, except decisions from Quebec, hold in substance that "the law does not contemplate the offense (defamation of the dead) as causing any special damage to another individual, though related to the deceased, and therefore it cannot be made the basis for recovery in a civil action".Newell's, The Law of Slander and Libel, 4th Ed., p. 368, sec. 332.See alsoWellman v. Sun Printing & Pub. Ass'n, 66 Hun 331, 21 N.Y.S. 577, 579;Sorenson v. Balaban, 11 App.Div. 164, 42 N.Y.S. 654;In re Fleming, 223 App.Div. 849, 228 N.Y.S. 544;Eagles v. Liberty Weekly, Inc., 137 Misc. 575, 244 N.Y.S. 430;Rose v. Daily Mirror, Inc., 284 N.Y. 335, 31 N.E.2d 182, 132 A.L.R. 888;Bradt v. New Nonpareil Co., 108 Iowa 449, 79 N.W. 122, 45 L.R.A. 681;Fleagle v. Downing, 183 Iowa 1300, 168 N.W. 157;Skrocki v. Stahl, 14 Cal.App. 1, 110 P. 957;Saucer v. Giroux, 54 Cal.App. 732, 202 P. 887;Note L.R.A.1917C, pp. 615-617;Note90 A.L.R. pp. 1175, 1181;Odgers on Libel and Slander, 5th Ed., p. 23;Gatley on Libel and Slander, 3d Ed., p. 11;37 C.J.p. 11, Sec. 295;33...